Rousseau's “Social Contract”

From the famous opening line: “Man is born free, but everywhere he is in chains.” we deduce three things: Rousseau loves paradoxes, he loves freedom, and he is nostalgic for the freedom man enjoyed before he became a member of society.

The second line: “Many a one believes himself the master of others, and yet he is a greater slave than they.” Another paradox! Rousseau is reminiscent of the Chinese sage Lao-Tzu and perhaps he was even inspired by the philosophy of the Tao. The emperor who thinks he has power over everything is in fact the slave of everything, like a rat on a treadmill running desperately just to keep still. But why a greater slave? Perhaps because the oppressed know they are enslaved. Society’s bonds are part of their everyday experience. The oppressor by contrast may not realize it.

The third line: “How has this change come about? I do not know.” Rousseau first defines what his purpose is not before going on to say what it is. It is not genealogy. That task will be taken up a century later by Nietzsche in his “Genealogy of Morals”.

The fourth line: “What can render it legitimate? I believe that I can settle this question.” Thus ends the first paragraph of Rousseau’s “Social Contract”. His purpose is what makes society legitimate despite the loss of freedom it entails. As he writes in the final paragraph of the whole work, it is to “lay down the principles of political right and attempt to establish the State on its foundations” and he concludes by saying that though he might have originally contemplated discussing external relations between one people and another: “law of nations, commerce, right of war and conquests, public rights, alliances, negotiations, treaties etc.”, these were beyond his limited scope. This is interesting in light of Nietzsche’s answer to how the social relation came about as being a consequence of external imposition in the first place. Nevertheless, Rousseau’s subject as we said is not speculative history nor external relations, but the current legitimacy of forms of authority internal to a society.

The structure of Rousseau’s work, like his first paragraph, is four-fold, and while seemingly disorganized conceals a hidden structure noted by Hilail Gildin. Following the introductory chapter to book one, the first four chapters concern false views of political authority, whilst the remaining four chapters establish its true foundations. The first six chapters of book two treat the sovereign as the source of law, the remaining six the legislator as its creator. The first nine chapters of book three discuss the institution of government, and the remaining nine how government might be prevented from usurping sovereign authority. The first four chapters of book four concern assemblies of the people, and the next four concern other public institutions besides the popular assemblies.

We focus primarily on the first book. What makes a moral obligation legitimate? Moral obligations are not secured out of prudence as might be the case in a state of nature under threat of force. By definition, legitimacy is not based on force. Nor is it custom based on psychological contentment because “man born in slavery” might not know better, “loving servitude as the companions of Ulysses loved their brutishness”. Turned into pigs by Circe, they lost the desire to be changed back. Nor is it ordained by God, because of the unknowability of divine will, and loss of faith in any authority who might claim to know it better. Nor is it grounded in nature because its truth or falsehood, though not dependent merely on contentment, does rely on consent. What we are left with is legitimacy as a secular concept based on something more than psychological contentment or natural law, as a covenant. Since it cannot be to God, it must be between men.

Any covenant alienates the individual will either partially or wholly, and either to a part or to the whole of society. This gives four possible kinds of covenant. He rejects any kind of total alienation of the will to some person or group of people because “to deprive your will of all freedom is to deprive your actions of all morality”. Without personal accountability, any talk of legitimacy is vacuous. A master-slave relation can never be legitimate even if voluntary. Slavery, far from terminating a state of nature, intensifies it: the covenant is only as valid as the force that enforces it. Hobbes’ convention to Leviathan fails on this count. Even partial alienation to a person or government is a paradox because it alienates to a legitimate authority that part of one’s will for which one is no longer morally accountable. So any alienation must be to a whole. The original aggregate of individuals can only consent to be governed if they become a whole, a people, a unity.

Rousseau also rejects the possibility of partial alienation to the whole. This appears a rejection of inalienable rights beyond the purview of society. One reason he gives is because of the impossibility of managing conflicts when these rights conflict and so the inevitable breakdown of such a society into either anarchy or tyranny. The covenant must completely alienate the rights of each member to the community as a whole. Since the covenant is by consent, any member may always withdraw from it in exchange for the restoration of their natural rights, but doing so means withdrawing from the possibility of making any moral claim, for example if they think society’s punishment is unfair.

Thus Rousseau conceives of the social contract: a contract of association between all members of a society which simultaneously generates both a moral community and sovereignty. Each individual has a dual role both as active participant in the sovereign process and perfectly obedient to its law. This law is legislated by the sovereign body of all people according to the general will and executed by the government they appoint. But what is the general will? The risk is that it becomes merely the will of a majority. Rousseau attempts to preclude this, as well as the usurpation of sovereign legislative power of the people by its government. Following John Noone, we may enunciate some of the terms of Rousseau’s social contract (scattered throughout his work):

1) All citizens have a voice in the popular assembly, none may lawfully be excluded. (§1.6; §2.2; §4.1)
2) Sovereignty is inalienable and indivisible. (§2,1; §2.2) The assembly cannot bind itself, much less future generations. This precludes legislation in perpetuity. (§1.7)
3) Except for the original contract which is unanimous, the majority will is binding, the necessary size of majority subject to legislation. (§4.2)
4) The assembly of all citizens is a permanent assembly that meets regularly at arranged times, elects magistrates and appoints or dismisses government according to the general will. (§3.13; §3.18)
5) The life and property of all members of society are subject to the sovereign body and its laws. (§1.9; §2.5)
6) Legislation is limited to areas of common concern. Any proposed legislation must first be voted on to determine if it is a common concern, and secondly if it is a common good. (§2.4)
7) Only those laws are binding that are universal and impersonal, not singling out a person or group for special treatment, favourable or unfavourable. (§2.6)
8) Citizens are to vote not according to personal desires, but on the basis of their estimation of the common good. (§4.2)
9) Sovereignty may be suspended in an emergency, but for a very limited time period.
10) A civil creed that includes tolerance of all faiths not subversive to peace. (§4.8)
11) Goals according to a pre-existing general will that all the members of society commit to.
          etc.

In particular, note that the social contract is not a contract between the people and their government. This is a popular misunderstanding. Rousseau was especially critical of contract theories of government because they alienate the individual will to but a part of society (government) which he had already rejected (except for very limited time periods in case of emergency). Rousseau conceives of legislative authority remaining always with the people, so that government could be dismissed at any time if that were the general will.

In contrast to Locke who believed in the inalienability of property rights, and that any contract needed moral agents to begin with, Rousseau’s social contract is what makes its members moral citizens in the first place “substituting justice for instinct as the guide to conduct”. Duty becomes meaningful for the first time, so also legitimacy. On the face of it, this seems like the grossest nonsense, because it precludes morality and duty as conceived by reason, conscience or natural law. We will see however that the morality of the covenant arising from Rousseau’s social contract aims for something different, something encompassing and empowering individual and natural morality. In Buddhist terms, the social contract is the foundation for the moral being (Buddha), the moral law (Dhamma) and the moral community (Sangha), but the latter is deemed essential for the first two to find expression. There is something quite insightful in seeing these three as inter-dependent, yet by making moral law dependent on the community, what if the community is wrong? Are there not moral ideas or feelings that transcend time and space? Rousseau, following Locke, rejects innate ideas but not innate feelings. He writes in “Emile” that God has given him “conscience that I may love the right, reason that I may perceive it, and freedom that I may choose it”. Reason is not a sufficient source of moral obligation, so man must be endowed with the affective capacity of conscience to feel obliged, but he must also be motivated. This is the role the social contract plays. It is the motivation of reciprocal obligation which Rousseau seems to believe is necessary for the moral sentiment to bear fruit, that gives man “freedom” to do good.

John Noone’s explanation of what Rousseau means by freedom goes some way towards deciphering both the idea of a contract giving freedom, and also the kind of morality (that of the covenant) that occupies Rousseau. There are three kinds of freedom for Rousseau: natural freedom, political freedom and freedom to act from one’s own conscience. The social contract clearly restrains natural freedom, and leaves conscientious freedom alone, that is freedom to do good from individual conscience, independent of any obligation. However, it enforces political freedom. The idea of obliging freedom seems paradoxical. But political freedom is based on equality. Law must regulate everyone equally, universally and impersonally, and not lead to inequality. Thus Rousseau’s idea of obliging political freedom should be understood as obliging equality, so people are free to act according to their reason and conscience without being disadvantaged for doing so. Put this way, morality is strictly political morality, a duty to fellow citizens that reciprocates a corresponding duty of others to oneself. To recall Rousseau’s noble aim:

To find a form of association which defends and protects the person and goods of each associate with all the common force, and by which each uniting with all yet obeys only himself and remains as free as before. (§1.6)

Freedom is the cornerstone of Rousseau’s philosophy, but freedom in harmony with the general will. If not, then it would harm others’ freedom. Does the social contract succeed in its noble objective? In theory, Rousseau thinks so, but in practice he requires a wise legislator, like the prophets of old under the guise of divine authority and even then the course of history never did run smooth. Rousseau does recognize this — he is a pragmatic realist.

Though his philosophy is not historically or empirically sound and though dogged with speculation, there is behind the seeming disorder a certain coherence. Whether the social contract that emerges is workable we leave to human imagination, but is it even theoretically viable? One criticism that comes to mind is that it seems to subordinate morality for its own sake to morality for the sake of the community. Another is that while procedurally sound, the commitment to substantial content in the form of the civic creed and social goals risks betraying something of the freedom for society to define these for themselves. A third is that morality emerging from community runs the risk of being restrictive to that community so community identity could come to be defined negatively in terms of other communities. In truth, community is a nested concept of family, tribe, city, country, even religion, but it is one kind of community which Rousseau believes must take precedence to avoid conflicting loyalties. One possible remedy to all these criticisms is a combination of Kantian autonomy of the individual will that chooses its communitarian commitments and a theological idea of regarding the covenant to any one of these communities not as end in itself, but as a means of training the will to subservience to divine will under the universal community of all beings.

While Aristotle and the medieval scholastics had extolled the virtue of a pre-existing natural law (Dhamma), Rousseau is the philosopher of the community (Sangha) and Kant would later favour the autonomy of the sovereign being (Buddha). Each tries to improve on their predecessor, but in reality Buddha, Dhamma and Sangha are all necessary and all inter-dependent. In the perfection of one, the other two will also come into fruition. For example, the participants of Rousseau’s social contract will need to be autonomous judges of morality in order to elect officials and make decisions while the wise legislator will need to bear consideration on what are the underlying natural virtues of their particular society in order to create suitable laws. However, in the face of widespread social inequality, Rousseau’s emphasis on communal solidarity as his starting point seems well-placed. For all those passionate about freedom and equality, his “Social Contract” will continue to be a source of inspiration.

Islamic Law & The Modern State (Wael Hallaq)

Rating:	★★★★
Category:	Books
Genre:	Religion & Philosophy
Tagline:	An Islamic State is a contradiction in terms

This is one of those rare books that changes the way you see the world, so long as you can forgive its occasionally unnecessarily adversarial style, in particular its unfair dismissal of all things Kantian in the Western philosophical tradition, but as a starting point for self-reflection and critical enquiry, it is perfect. The events of 2014 re-enforce how the desire for self-independence of peoples has been translated in modern international society into the desire for the State. This expresses itself in diplomatic initiatives as in Scotland and Catalunya, but can also  degenerate into violent resistance as in Syria, Iraq, Libya and Ukraine. The State is a site of decolonisation and self-determination, but also a source of potential sectarianism and civil war, especially when the mechanisms of the state do not represent and care for the peoples under its dominion.

The Israel-Palestine problem has often been framed as requiring a two-state or a one-state solution, but reflecting on Hallaq’s book, we see that perhaps the state itself is the problem in limiting our imagination of what a harmonious world should look like. The Jewish people needed a refuge after the horrors of the Second World War, and the state offers such a refuge, but for whom and against what? It was part of the solution to a problem that it had itself created in its extreme form in the Nazi state. How else to protect a people from the oppression of other states, but to create a state oneself? There are no easy answers. The State is the gold standard and only symbol in contemporary society of a people’s emancipation. Nevertheless, it is interesting to join Hallaq in tracing back the intellectual history within an Islamic context of what the state has come to stand in the place of, and how it has failed by comparison. And indeed, what we might discover is relevant in a non-Islamic context also.

Photo: “Man praying in Morocco”  —Umbreen Hafeez

Introduction:

Until the early 19th century and for twelve centuries before then, the moral law of Islam had successfully regulated customary law and local practices across the Muslim world, from North Africa to India. Beginning in the 19th century, it was structurally dismantled by colonial powers and lost its autonomy to the modern state. Nevertheless, it still remains a source of religious and moral authority, a spiritual source of moral ends, procedural laws and “technologies” for caring for the self. Islamic law is no longer the living breathing entity it once was, and what remains of it are distillations in special cases or appropriations to legitimize the modern state’s own structural violence. Semerjian’s “Off the Straight Path” tells how Islamic law was never as harsh in its punishments as it stipulated in theory, and as it is reputed to be. Judges were encouraged to be forgiving, finding loopholes to justify lesser sentences. For example, adultery met with a fine, while prostitutes were at worst expelled from the community.

Modern Islamic thinkers and scholars take the modern state for granted as a timeless phenomenon, but the state is a false idol of our times. Hallaq claims it is incompatible with the bottom-up nature of Islamic governance, and indeed with any reintegration of morality within modernity. Morality he claims has been displaced by the paradigm of the Enlightenment. Despite its internal multiplicity, despite its rebels in Rousseau, Kierkegaard, Marx and Herder, what Enlightenment thinkers shared was the assumption of a critical rational morality, secular, humanist and binding universally on all civilizations. To say this is the Enlightenment paradigm is not to say that there were not exceptions. Indeed, a paradigm shift occurs when the subversive discourses become the new norm. In drawing on pre-modern Islamic thought, just as modernity draws on the Enlightenment, Hallaq believes that we can engage with what is truly important, namely morality as end in itself, and not politics or law which have replaced it, not to mention economic growth, as a standard of human flourishing.

Islamic law rested on a concept of jihad (striving) toward the accomplishment of a moral end (the Arabic word is much misunderstood in late modernity with its political usage that I choose not to use it, just as the word Sharia for Islamic law has become symptomatic today with barbaric punishments when British colonial administrators had once criticized it on the contrary for being “too lenient”). In this striving for a moral resource from an earlier age, Hallaq defends himself against the charge of nostalgia. In the first place, this project is no different from an archaeology of ancient Greek and Roman thought with which Islam too has a shared heritage. The project is not one of revival of institutions, but of ideas. Any claim that we cannot learn from others is either one of self-diminution (that we are incapable of transcending the narrow self) or of hubris (that we have come too far already). Secondly, whilst Islamic law is defunct, its “five pillars” and their consequences are still preserved in the spiritual memory of all Muslims. Thirdly, disenchantment with modernity is not an Islamic concern, but a shared and distinctly modern, even postmodern, concern. It transcends both religious faith and the modern paradigm. Fourthly, and most importantly, any charge of nostalgia is closely allied with an ideology of progress, which dogmatically adheres to current ideas of truth, claiming to “know better” and in so doing ignores profound existential and moral questions regarding underlying causes, unwitting assumptions, as well as the ephemerality of the present moment that one day will also be history.

The Modern State:

Despite vast differences in theories of the state (Weber’s bureaucratic, Kelsen’s legal, Schmitt’s political, Marx’s economic, Gramsci’s hegemonic, Foucault’s cultural and so on), all these are merely differences of perspective. Despite also vast discrepancies in the actual content of the modern State, ranging from the communist Soviet Union to the democracies of Sweden and the United States, its essential characteristics are shared form-properties: (1) a historical product of a particular culture at a particular time, (2) its metaphysics of sovereignty, (3) its legislative monopoly and monopoly over law and violence, (4) its bureaucratic machinery, and (5) its cultural hegemony and production of the national subject.

(1) All things are historically specific, but the state defined in terms of territorial boundaries is concretely so. Through a scientific process of self-observation beginning in the early eighteenth century, the European state conceived of itself as universal and timeless and subject to scientific analysis. This analysis of content presupposed a prior metaphysics of existence. (2) The concepts of statehood are secular translations of Christian theological ones. The omnipotent God becomes the omnipotent sovereign, but the structures remain the same. Sovereignty presupposes not only a state, but also the shared imagination of a nation by its people. It exists for its own sake, an end for which the individual may even be sacrificed. This false idol is made explicit by Hobbes’ Leviathan. (3) Sovereign will gives birth to sovereign law and violence to realize that will. (4) The administrative order is a necessary extension of the legal order, and the image is of the blind lady of justice. Bureaucracy does indeed prioritize equality, but it also conceals structural inequalities and creates top-down pyramid structures of power controlling every aspect of life. It intrudes into the private sphere and fosters community, but on its own terms, the community of the state. (5) The internal strength and coherence of any state depends not only on organizing society, but also penetrating it culturally to form national identity. Should any of these five form properties change, the state would necessarily be a very different concept. But these five are also very closely intertwined, so any change in one would necessarily also entail a significant change in all.

I agree with Hallaq that the modern state identifies society’s interest with national interest. However, this identification is not purely ideological, but also representational. It is less an idol than an ideal of coherence, a tool bringing people together in the pursuit of moral ends. The belief in the state even to the point of sacrifice is a belief that the state is protecting morality and so worth fighting for. In so far as this ideal fails, the state is indeed weak, and falls into disrepute. Hallaq is right to warn that the state can become an ideology, continuing to exert its will when no longer serving its intended function. However, since it is constructed on human belief, it can also fail in its moral ends as a mere consequence of people no longer believing in it. When people lose confidence, are no longer willing to put the good of society before personal interest or are too cowardly to fight for an ideal in which they have lost faith (be it the nation or another kind of spiritual community), the result is the breakdown of society, and susceptibility to both internal and external corruption, criminal elements, and even military power. Hallaq is of course right that the state should not be an end in itself, and most Europeans do recognize that. Europe’s history testifies to the dangers of nationalism.

I would like to suggest the possibility that the modern state is not of European origin at all. The bureaucracy of the Chinese state comprising its emperor and civil service were over a thousand years old before the corresponding British institutions were even born, and perhaps even inspired them. The rise of the state in Europe follows the discovery of China. The birth of capitalism attributed to Adam Smith built upon the ideas of the French physiocrats who were in turn heavily influenced by the Chinese. Like the Chinese, they valued agriculture above all, identified society with the human body, compared money in the state to the circulation of blood round this body, from which they deduced the importance of exchange and saw the need for a general will to regulate this body’s well-being. For Rousseau, this general will arose through respect for the state, love for one’s fellow citizens and equality under the law. The correlative of the frontier which limits the state externally is the absence of internal limit of the “police” state (governing subjects, regulating economic activity, production, and the price of goods). The compensating mechanism for this absence of limit is law and political economy, or what Foucault termed the rise of “governmentality” in 18th century Europe. This Tang dynasty poem by Du Fu from 8th century China, inspired by sources even earlier, brilliantly encapsulates one aspect of “governmentality”, namely the skilful and appropriate use of force. It is not far-fetched to imagine the modern state and its law to be a translation of Chinese ideas into an Enlightenment context.

Ballad of the Frontier (Du Fu)

If you draw the bow, draw the strongest.

Choosing arrows, take the longest.

To down the man, aim for the horse.

Confronting bandits, aim for the chief.

Killing, let there be a limit,

And to each land, its own bounds.

If you can repel invaders,

What use in killing, maiming more?

To conclude with an even crazier thought, while the British imposed a Chinese-looking bureaucracy on India (and its other colonies, including Victorian England itself in the 19th century), it used a more Ottoman or Indian-looking extra-territorial law of the sultan to control (through treaties of tax and trade) China and other countries which it never formally colonized. There is something almost paradoxical and unnatural that this should have functioned with any degree of success. On one level it did, yet at a deeper level this also perhaps explains why the experience of European colonialism is said to have been traumatic in ways that even centuries of despotism or pre-modern colonial movements were not.

Separation of Powers:

There is an ideal in Western democracies enunciated by Montesquieu of a separation of powers to ward off the dangers of authoritarianism. In practice there is only a loose separation of functions (legislative passing law, executive and administrative enacting it, and judicial interpreting it), with power resting absolutely with the elected legislative body to indicate how law should be applied and interpreted. As the body supposed to represent the general will of the people, and accountable to them, it seems right that this should be so, and indeed breakdowns of democracy have always been allied with a ceding of legislative power to a presidential or military executive ruling by decree without consultation or to a judiciary forming an anti-state within the state.

Islamic governance also achieved a separation of powers with ultimate authority in the legislature, but by very different means and it is interesting to explore how it did things differently. First, there was no such thing as an “Islamic state”, but an Umma (Community). Muslim territories were known as Dar al-Islam, and non-Muslim as Dar al-Harb. The Community did not possess sovereignty, nor autonomous political or legal will. Sovereignty lay with God alone, and decision-making was by consensus, but restricted by general moral principles beyond the Community’s control. Care for the poor for example was their right, as all members of the Community were equal, and all wealth belonged to God. Islamic law was a bottom-up system of governance, and the power of the executive (the sultan) was limited, derivative and compared to the modern state relatively marginal. The sultan had little influence over the local culture and legal system. Analogous for example to native White Cap Chiefs in African customary law, they were not owners of territory, but holders on trust.

Meanwhile, the jurists of Islam lived with and by the values of the common social world, representing especially the lower and middle social strata of which they were mostly part. They were advocates of the disadvantaged to the higher reaches of power, and represented for the masses the ideals of piety, rectitude and fine education as “heirs of the Prophet”. As well as playing a pedagogical role, two particular legal functions were that of the mufti (legal specialist)  and the qadi (judge). The mufti was the legislative authority who issued legal answers to abstract questions he was asked to address. Consultation was free, so accessible to all. With time, these answers were brought together and systematized both in memory and in writing as “law books”. Legal opinions, called fatwas, though non-binding, were routinely upheld and applied in the courts. A judge in Cairo might even send a letter to a mufti in Muslim Spain or Syria. Because legal knowledge was widespread, social underdogs knew their rights before appealing to the courts, so won the great majority of their cases when they were plaintiffs. They could also ask for an opinion which then dissuaded them from proceeding to court, opting instead for informal mediation. The Muslim court could not make up its own law, its ultimate reference neither the executive nor itself but the authority of the mufti.

The qadi was a member of the community who, for a small and affordable fee, was expected to apply the law to judge cases and resolve disputes. He was not required to have the same expert legal knowledge as the muftis or author-jurists. The language of the court was the common language, so understandable to all. Unlike a jury member today, the qadi’s scope of consideration was not limited by a superior power (they might for example address underlying causes to a dispute), they were expected to be intimately familiar with the local customs and ways of life of the community they served, and their decisions were final. As well as passing judgments in court, they also oversaw public works and endowments to the poor and helped arbitrate in non-legal family disputes. Though chosen by rulers, qadis held their positions only a few years in parallel with existing employment, so they could not be so easily pressured or corrupted.

The law applied by the qadis was the result of a centuries-long hermeneutical project. However, it was also legally pluralistic, with different legal schools developing very different legal opinions. Each jurist could exercise ijtihad (creative reasoning) to arrive at the best guess of what the law should be. This chimes with Lauterpacht’s optimistic vision of the lawyer as a Herculean gap-filler applying law for law’s sake, law assumed a priori to be logically coherent. But contrary to modern law, it was stable only in form while being remarkably flexible in both place and time depending on social and popular interests and concerns. On the one hand, only God knows the truth. On the other hand, it was an established maxim that every mujtahid (jurist conducting ijtihad) is correct!

The sultan possessed no real sovereignty, and without the bureaucratic machinery of the modern state was unable to penetrate society. The sultan could appoint judges and raise taxes so long as he protected life, property, and communal harmony (a sacred concept in Islam), his executive authority (the final decades of the Mamluk’s rule being an exception) restricted to protecting against disorder, including any reported misconduct by government servants or by the qadis. The system was based on an ethic of moral accountability of the individual, seen as indispensable for political legitimacy (corporations didn’t exist) and the well-being of society and dynasty. Qadis, muftis and tax collectors sat in governors’ assemblies, acting as intermediaries representing their communities’ interests. There were even times when the rulers of Islamic lands were non-Muslims, yet local Islamic values, customs and language remained.

Perhaps one reason why Islamic law persisted for twelve centuries was because of local homogeneity despite differences between localities. Rawls’ conception of a “well-ordered society” is one in which (i) everyone accepts (and knows everyone else accepts) the same principles of justice, (ii) social and political institutions are respected for satisfying these principles and work in harmony, and (iii) citizens comply with these principles and institutions. However, once local homogeneity is lost, and established principles are no longer accepted as obviously true, then the risk of arbitrariness becomes a problem, and a central presiding authority is inevitably needed to maintain predictability of the law. Islamic law in its time was a model of the separation of powers with legislative power residing with the private unpaid scholars within society, who through the mouthpiece of Islamic law represented the poor, protected their interests, and acted as intermediary to the politically powerful. However, that age has passed, and the future will need new ideas, with lost consensus locally reconstructed.

The Legal, the Political, and the Moral:

Hallaq next addresses the distinction in the Western history of ideas between the “is” and the “ought”, between positive law and morality. For Christian as well as Islamic theology, there was only morality. For Bentham, Nietzsche and Schmitt, there is only positive law. Law that once expressed a moral ideal or utopia has for some modern thinkers become entirely political, regulating a conflicting mass of private interests and dividing the world into friend and foe. Hallaq blames the possibility of such moral evacuation of law on the creation of the is/ought distinction in the first place.

He derides Kant in particular for his categorical imperative as well as much of Western philosophy in a strident tone uncharacteristic of the rest of the book. Kant’s imperative is not without its problems: it dictates one ought to act in such a way as one would wish to be a universal law. It is the duty of the moral subject to unite the “ought” and the “is”. Kant was a deeply moral man. If Germany had been a Muslim society, Kant would be a mufti, and his categorical imperative a fatwa which would have been widely respected and applied by the qadis in making their judgments. If Hallaq cannot respect Kant as a mufti of his age, how can the reader respect Hallaq as a mufti of our own age, and if not Hallaq, then who? This only goes to emphasize how the age of the mufti has passed.

Let us criticize ideas, but not people or traditions (unless done in good humour). Instead of polluting the wells of our mutual intellectual heritages, we should be asking, “what is wrong?” and “how to purify it?”. Islamic fatwas would be equally susceptible to critique, though this does not serve Hallaq’s purpose to recover a subjugated source and balance out against Western prejudice. Nevertheless, the dangers of Schmittian distinctions exist in Islamic law also: for example between Muslim lands, and non-Muslim; between the Muslim citizen and the “slave soldier” who had no choice but to fight; between the law as written and as applied by the qadi who used ijtihad and forgiveness; and even in the Quran itself between the prescribed forms of violence which say one thing (legal), but “better to forgive for God is all-merciful, all- compassionate” (moral). Hallaq’s very own argument takes on a friend/foe characteristic in pitting Enlightenment and Islamic law as enemies, instead of as in the rest of his book as merely incompatible ideas in need of new thinkers to find the best from both and reject what rightly should be rejected from both.

The identification of “is” and “ought” is reflected also in ancient language. For example in Pali, the language of the Buddha, the word “dhamma” means nature itself, the law of nature, the duty that must be performed according to that law of nature, and the fruits or benefits that arise from the performance of that duty. No distinctions are made between these four. However, once these divisions are made which Kant was trying to heal, no doubt unsuccessfully, there is no going back unless we can have faith in a kind of wisdom that transcends personal opinions. The contradiction between “only God knows the truth”, and “every mujtahid is correct” is no longer acceptable. Since God’s truth is inaccessible, Kant’s injunction is both demanding and inspiring: every person must become a moral subject and mujtahid in their own right! However, Kant falls short on an egalitarian ideal because those whom Kant deems incapable are not afforded equal dignity in his moral system.

Some Concluding Thoughts:

Whenever a society’s homogeneity of belief breaks down, some amount of positive construction is surely needed, which then needs to be mythologized. There follows an age of disenchantment and the cycle repeats. Enlightenment values of reason, progress and the state should perhaps be seen as temporary mediators to any breakdown of consensus, to try to help build it up again. What Hallaq warns is that they can also be divisive and a source of civil strife.

One important part of the cure is what Hallaq calls “technologies of the self” that build up the moral subject from the inside out instead of the outside in. The term, borrowed from Foucault, means techniques of self-transformation for the sake of “happiness, purity, wisdom, perfection or immortality”, in short a positive kind of self-discipline, founded less on rationality (self-knowledge) and more on love (care of the self). These techniques of self-mastery and virtue are universally known and ingrained in the pre-modern mind, but also easy to forget, so it is worthwhile to continuously remind ourselves of and practice them. They contrast with the biopolitics that engenders the docility and utility of the subject through systems of surveillance, education and healthcare, operating not from the volition of the subject, but from a political will located outside it, whereby the state constitutes itself as a problem-solving machine in the service of the people, the child a site of institutionalization, and in which the patriarchy of the family is replaced by that of the state. The crisis of the family and disintegration of the social fabric (which Durkheim termed anomie) seem to coincide with the emergence of the modern state that problematises the individual. In the place of religious, tribal and familial identities, we see on the one hand the emergence of nationalism and on the other the rise in consumerism and narcissism of the modern subject who rejects his or her own problematisation, yet does so in ways that are socially sanctioned and unwittingly encouraged. So what are the technologies that might liberate us?

In Islam, they are built upon the five pillars: (1) the faith in one God and in His Messenger, (2) prayer, (3) alms-giving, (4) pilgrimage and (5) fasting. While Rousseau concludes his “Social Contract” with a discussion of religion, Islamic social tracts always began with religion, and in particular the five pillars. As discussed previously, law and morality could not be separated. Through the five pillars (as well as ritual purification), practiced with niyya (intention), the Muslim comes closer to God and trains the heart to be compassionate and to do good. I cannot do justice here to Hallaq’s beautiful explanations, but suffice to say that each of these pillars and their performative acts carry a deeper mysticism and meaning, accomplished not out of obligation but with willingness and pleasure. They engender an inner peacefulness of the nafs (soul, or consciousness).

Ultimately, the risk of breakdown of the state is just as much a problem of the state as its continuing existence, so I do not read Hallaq’s book as anti-state, but as a thorough dismantling of the ideology of the state. As with any negative project, we need a positive vision. Hallaq’s vision is a re-centreing of society on the moral. What of the enlightenment ideal that if the moral is not discovered for oneself, with one’s own heart, then it is externally imposed and so replicates patterns of domination that regulate the individual externally as if he or she were a child from birth till death? Does this Kantian ethics of autonomy stand in contradiction to Hallaq’s autonomous morality? I don’t believe so, but Hallaq’s misgivings run deep. Citing Gray from “Enlightenment’s Wake” (1995):

“The most fundamental Western commitment, the humanist conception of humankind as a privileged site of truth, which is expressed in Socratic enquiry and in Christian revelation, and which re-emerges in secular and naturalistic form in the Enlightenment project of human self-emancipation through the growth of knowledge, must be given up…It is in reaching a new relationship with our natural environment…in which human subjectivity is not taken to be the measure of all things, that a turn… can be accomplished…dwelling together on earth in peace.”

But what else is there apart from subjective experience and revelation? Is that not the meaning of enlightenment — the turn must come from within. I believe so anyway.

Earth over Eden

Woot, I found a short verse which I thought I'd lost in the library a few months ago and cleaning staff had thrown it away, but it was in the pocket of my coat all along, phew!

It’s based on a dream image. Eden is somehow below and I’m scrambling desperately higher to stay on Earth. I wrote it around the same time as The Great Fisherman of the Sea, and the theme is similar.

I love the universe

And should God tempt me

To fall back into the garden,

I would flee up a spiral stair

To find peace here

Not go back there.

—okei

Photo: ‘Yellow & Pink Azaleas’ —okei

Rupa & The April Fishes

Born to Indian parents in California, raised in the US, India & southern France, and leading a double life as musician & doctor, singer/guitarist/composer Rupa Marya and her “polyglot band of musical renegades” concoct an enchanting mix of French nouvelle vague, rousing Latin grooves, Gypsy swing, and dreamy Indian ragas. And to top it all, I just love their intelligent lyrics.

Une Americaine à Paris (An American Woman in Paris)

Guy in the Background: 

there are not really differences, I think they are social constructions, we have all the same motivations, the same desires and it's a story of connecting...

a story of speaking, of changing ideas and realizing... 

that seems to me the most important thing, and tomorrow morning, you will be smiling

Main Lyrics:
after some days in silence
I did not say a word
and then I met you here in paris
sitting next to me in a bar
you just came from Algiers
and I from San Francisco
the world is crazy between us
you asked
aren't you afraid to be an American woman in Paris 

with all these angry Arabs
I said no, I'm not American
you are not Arab and we are not in Paris
the world is crazy between us
what do you think of this?
what do you think of all these stories?
these stories, these stories make us crazy

you wanted to take your photo with me
I said no thank you, no photo
I prefer life
I'm not American
you're not Arab and we are not in Paris
we are in life
the world is crazy between us

what do you think, what do you think, what do you think  

what do you think of all this

what do you think of all these stories?
these stories, these stories make us crazy

Trouble

well i've had a fine fine time
but now the moon and its strange light
have put a question on the table
and i know you know what i mean
i can see it in your eyes as they catch upon
something in me
oh that thing is trouble
oh trouble, yeah trouble, beautiful trouble
why don't you stay
i think that you should go
woah, woah
now don't you think that i don't find
everything about you so divine
but just one more moment here and
i'll be through
it's not your fault
and it's not mine
it's the moon and the sweet light
she brings tonight
oh my love, can't you see
she brings trouble
oh trouble, yeah trouble, beautiful trouble
the more i try to explain
the less i know
woah, woah, oh
(Instrumental)
well, it takes 1 to know one
and it takes 2 to tango
and it takes just a count to 3 to fall
out of time out of time
and the ground starts to dissolve
oh my love can't you see
i'm in trouble
oh trouble, yeah trouble, beautiful trouble
the more i try to explain
the less i know
yeah trouble, yeah trouble, sweet sweet trouble
where do i go i don't know
where do i go
woah, woah

Plus Que Moi (More than me)

Oh ma pauvre tete (oh my poor head)
peut pas comprendre toutes ces choses (can't understand all these things)
esclave de mes pensées betes (slave of my stupid thoughts)
enfermée par les histoires que je compose (enclosed by the stories that I write)
chaque matin, chaque soir (every morning, every evening)
poursuivie par l'idée qu'll faut que je m'explique (pursued by the idea that I must explain myself)
et j'essaie avec des histoires mais (and I try with these stories but)
quoi que je dise je ne dis rien (whatever I might say, I say nothing)
et quoi que je sache je ne sais rien (and whatever I might know, I know nothing)

Donc je les lance dans le fleuve (Therefore, I throw them into the river)
toutes ces histoires qui m'énervent (all these stories that annoy me)
et vois celles qui flottent ou s'enfoncent (and watch which ones float or sink)
parce que le fleuve est plus sage que moi (because the river is wiser than I am)

Et aussi mon estomac (And also my stomach)
devient entortillé autour de mes idées (become entwined around my ideas)
essayant de faire les choses plus nettes (trying to make things clearer)
je trouve que je les fais plus melées (I find that I make them more complicated)

Chaque matin, chaque soir (Every morning, every evening)
je me demande c'est quoi la verité (I ask myself what the truth is)
et j'essaye avec des histoires mais (and I try with these stories but)
quoi que je dise ce n'est pas ca (whatever I might say, it's not that)
c'est pas à moi de raconter ce que l'on ne peut pas (it's not up to me to tell what I cannot)

Donc je les jette dans le ciel (Therefore I throw them into the sky)
moi pieds sur terre tenant le bout de la ficelle (me, feet on the ground, holding the end of the kite)
et vois celles qui tombent ou s'envolent (and I watch which ones fall or fly away)
parce que le ciel est plus honnete que moi (because the sky is more honest than me)

Et quoi que je dise je ne dis rein (And whatever I might say, I say nothing)
et quoi que je sache je ne sais rien (and whatever I might know, I know nothing)
je les raconte a la lune (I tell them to the moon)
ici toute seule, toute la nuit (here, all alone, all night)
et apprends d'elle de la folie (and I learn from her of madness)
parce que la lune sourit plus que moi (because the moon smiles more than me)

Yaad (Memory)

 

Gracias a La Vida

A little poem in Spanish, subconsciously inspired by the famous song:

Gracias a la vida
Que no dura solo un día
Gracias al anochecer
Que nos enseña
Gracias a la alegría
Del amanecer
Y para la sonrisa
Del baile creer.

—okei

Translation:

Thanks to life

That does not last just one day

Thanks to the dusk

That teaches us

Thanks to the joy

Of the dawn

And for the smile

To believe in the dance.

 

Video: Gracias A La Vida by Mercedes Sosa. Words by Violeta Parra.

Kayleigh Goldsworthy

Kayleigh Goldsworthy’s a fantastic singer who should be better known. Her lyrics are nowhere on the web, so here’s sharing three of her songs.

Tennessee

Well there's a silence when you're looking at me
And I wish I could go back to sleep
But in this moment you won't look beyond the brown behind the black
Wide abyss in my mind and I'm turning back
Into the girl I always wanted me to be
Bathed in my sympathy, I'm begging to be clean
I'll send a postcard as I try to find my way
My ghosts behind me, I know that I'll make it through
And be oka-a-a-a-a-a-ay, be oka-a-a-a-a-ay

There's a light that's up ahead
And I'll be catching it the first thing in the mornin’
I'm on my way
Towards a southern town beneath the stars I'll wander every night
Tennessee, you've been the nicest place to me
 
Well there's a siren that is deafening
As I try to uncover where I've been
But everybody's second guessing
All the moves their pawns have made
And I laugh to myself at this mess I've made

I'm not the girl I always thought that I would be
And I've stopped holding all my breath on silly things
But all the years I've spent just trying to believe
That I'd make it out of here and on to something only
In my dre-e-e-e-e-e-eams, in my dre-e-e-e-e-eams.

There's a light that's up ahead
And I'll be catching it the first thing in the mornin’
I'm on my way
Towards a southern town beneath the stars I'll wander every night
'Cos Tennessee, you've been the nicest place to me

And I'm on my wa-a-a-ayea-a-a-ay-a-a-a-a-ay
I'm on my wa-a-a-ayea-a-a-ay-a-a-a-a-a-ay
I'm not the girl I always dreamed that I would be
But on my way to there I know I'll surely see
The mile markers as I drive down 65
Take me to somewhere that had always made me feel
Alive, oh alive

'Cos there's a light that's up ahead
And I'll be catching it the first thing in the mornin’
I'm on my way
Towards a southern town beneath the stars I'll wander every night
'Cos Tennessee, you've been the nicest thing to me

Where the Summer Goes

Riding by the river, I don't know where the summer goes
Or why you stayed the night and then you left me all alone
Still, I couldn't stay away even though you wouldn't change
Up your mind or your story in the morning

So these days I stay awake through the twilight every day
Take another hit of something just to ease this pain away
But I couldn't bear to breathe in the dust from when you leave
So I cried and told my heart to just keep beating

Two rights, well they'll never make a wrong
Unless you hold tight to what you shouldn't hold on
Because your mind will cloud the way make you think love's gone away
But cross my heart I'll hope to die before it's ending

Still I'm waiting every day though the answers never came
Tried to reach you through the mess of all mixed signals that you gave
'Cos I wanted to believe that we could have had something
But now I'm learning not to throw myself to the fire so suddenly

'Cos two rights, I don't know what's so wrong
Except you hold tight to fears you shouldn't hold on
And your mind will cloud the way make you believe the lies you say
Just to make you feel better while it's ending

oooh...oo-oo-oo-oo-ooh

You say you'd rather be alone than love someone when you get home
While I understand your reasoning, don't you think I should have known?
But now it's your fucking loss because you don't know what you've got
So I'll find a man who proves to me that now I'm better off

'Cos two rights, well they'll never make a wrong
Unless you hold tight to fears you shouldn't hold on
Because your mind will cloud the way. make you think love's gone away
But cross my heart I'll hope to die before it's ending
Just to make you feel better while it's ending.

Streetlights

It's getting colder than, colder than I've ever been
But that must be why you told me bundle up I guess
Until the streetlights take me in and make me one of them
Until the streetlights take me in and make me whole.

And yes, I miss a man, miss him more but mostly when
He used to call me down the stairs and when he'd take my hand
I used to think no-one would ever make me feel like that
I used to think no-one would ever make me whole

'Cos there's a darkness sleeping next to me
There's a lightness that I can't find
But now I see that you've gone from me
I never heard you leave

Well, I guess I should have left when I heard you talk like that
Well, I must have had you wrong, I thought I heard you laugh
Before the phone call that had ended all I knew of that
Before the phone call that had ended all of that

'Cos there's a darkness sleeping next to me
There's a lightness that I can't find
But now I see that you've gone from me
I never heard you leave

'Cos there's a darkness sleeping next to me
There's a lightness that I can't find
But now I see that you've gone from me
I never saw you leave
I never heard you leave

It's getting colder than, colder than I've ever been
But that must be why you told me bundle up I guess
Until the streetlights take me in and make me one of them
Until the streetlights take me in and take me home.

Self-Identity

These are dhamma notes based on a talk by Martine Batchelor, but any errors are "mine".

Mindfulness is awareness of the thoughts that arise and pass, not to get rid of thought, but to refine it. Are these thoughts useful to us? When the mind is at rest, brain scans show that a lot of brain activity is still happening for most people. But in those who meditate regularly, the scans show a very different, … quiet mind. This is not just true scientifically, objectively. Those who meditate regularly also experience that their minds are quieter.

So what are the rest of us thinking about? A lot of the time, self-referential thoughts: identifying ourselves (creating a thick sense of self — its likes, dislikes, needs, wants, fears, nationality, profession, gender, appearance, age, religion, the football team we support, the friends we have, the number of likes we get on social networks, our sense of being introverted or extroverted, liberal or conservative, wealthy or poor, restricted or free), also identifying others in the same way, even identifying how others might identify us. Often these speculations are completely wrong. Through practicing vipassana meditation, we can avoid the habit of what Martine Batchelor calls "selfing". 

Vipassana meditation is the act of just sitting, watching the thoughts arise and pass, observing the impermanence of these thoughts and the tendency of these thoughts to self-identify  ("I must do this", "I wish I hadn't said that", "I wonder what they think of me"). The purpose is not to stop these thoughts, but rather to question, are these thoughts useful? If a car is coming, we need the self-referential thought in order to react! The purpose is not to be rid of our sense of identity, but to be aware what kind of identity are these thoughts building? Are we outsourcing our identity to those outside of us? We are habituated to do this from a young age.

At the beginning when we meditate, our awareness radar picks up on negative thoughts. However, once these disappear, we can refine a positive healthy sense of self. The Buddhist idea of no-self doesn't mean no identity, just recognizing identifiers are just thoughts and are these thoughts useful? The best kind of self-identification are personal qualities and aptitudes which we can develop and become more proficient and self-confident in. Even these are impermanent, because our identities are always subject to change and dependent on conditions. The error we make is to mistake our state with our identity. Our identity is our creative functioning, not a permanent fixed state, but a capacity, for example to speak a language, to teach, to respond whatever comes up in a wise and compassionate way.

Martine Batchelor was once a French nun practicing Zen in Korea for many years, now a teacher of Zen. Both these, nun & teacher, were self-identifications for her. When under the needle, she became quite self-consciousness about her own nervousness, thinking "I'm a Zen teacher, I'm supposed to stay Zen" though she wasn't feeling Zen. Even a Zen teacher has distracting self-identifying thoughts... but she recognised them. It didn't make them go away, but then the doctor gave her a local anaesthetic and everything was fine. When she left being a nun, the experience at first was quite deflating, a blow to her sense of self-identity, but it also liberated her from that identity.

The Zen meditation technique they taught in Korea was to drop the question into consciousness, "what IS this?" not to find an answer but to experience the question turning you back to your whole experience in this moment and feeling in your whole body a sense of curiosity without affirmation, negation or expectation. The question is sometimes called the hwadu. Unlike the selfing thoughts that occupy and re-enforce our thick sense of self, the hwadu brings us back to experience, being with sensation without thought of "I" or "mine". 

Both Vipassana and Zen meditation help us to recognise selfing thoughts, bring us back to the moment and so develop quiet mind and a creative awareness of our inner self, creative so it's not fixed, but better able to respond to life in a wise and compassionate way.

Photo: Cast of Hestia from the Museum of Classical Archaeology in Cambridge's Classics Faculty